A Unanimous Supreme Court Makes The Crucial Point That Unethical Isn’t Necessarily Illegal, And Shouldn’t Be

This was a bad day for over-zealous prosecutors.

First, the Justice Department dropped all charges against Michael Flynn in the face of findings of overwhelming prosecutorial misconduct. Then a unanimous U. S. Supreme  reversed the fraud convictions of the two former aides to New Jersey governor Chris Christie for their roles in the “Bridgegate” scandal.

In 2013, Bridget Kelly, once Christie’s deputy chief of staff, and William Baroni of the Port Authority, had collaborated in reassigning traffic lanes on the George Washington Bridge typically reserved for residents of Fort Lee, N.J., to punish the town’s mayor for withholding support of Christie’s reelection bid. Christie ducked responsibility  for the petty stunt that inconvenienced hundreds of commuters, but was never formally implicated.

The Court held, in Kelly v. United States, that the actions of the two did not meet the statutory definition of fraud.

Baroni’s and Kelly’s realignment of the access lanes was an exercise
of regulatory power—a reallocation of the lanes between different
groups of drivers. This Court has already held that a scheme to alter
such a regulatory choice is not one to take the government’s property.
Id., at 23. And while a government’s right to its employees’ time and
labor is a property interest, the prosecution must also show that it is
an “object of the fraud.” Pasquantino v. United States, 544 U. S. 349,
355. Here, the time and labor of the Port Authority employees were
just the implementation costs of the defendants’ scheme to reallocate
the Bridge’s lanes—an incidental (even if foreseen) byproduct of their
regulatory object. Neither defendant sought to obtain the services that
the employees provided.

When a Court routinely criticized as sharply divided along ideological lines agrees across the bench, it demonstrates how egregious the prosecution of Baroni  and Kelly were.

The essence of Justice Elena Kagan’s opinion: Continue reading